Metropolitan News-Enterprise


Monday, August 11, 2003


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Ninth Circuit Panel Expresses Reluctance, but Rules Guatemalan Raised in U.S. Has No Right to Remain


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Guatemalan who has lived in the United States since he was a year old but never obtained legal status has no constitutional or statutory right to remain here, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The judges, while expressing reluctance, upheld a Board of Immigration Appeals ruling that Jose Didiel Munoz is a removable alien who fails to qualify for relief under any legal provision.

Munoz’s good character, longstanding residence, ties to family members living here, lack of significant current ties to Guatemala, and good faith effort to legalize his status once he reached the age of majority cannot overcome the barrier erected by Congress when it toughened immigration laws six years ago, the panel said.

The evidence presented to the immigration judge, Judge Richard Clifton wrote for the court, suggests that it is “pointless and unjust” to remove Munoz “from the only country he has ever consciously known.” But any relief must come from the INS or Congress, not from the courts, Clifton declared.

Munoz, the judge explained, was brought to the United States by his mother in 1980. His mother, who is now married to a U.S. resident, continues to live here, as do the two children born to his mother and stepfather.

He told the immigration judge that his father, whom he does not know, remains in Guatemala. No evidence was presented at the hearing to suggest that he has other family ties to Guatemala, or has been to his native land since being brought to the United States, Clifton noted.

In 1997, after turning 18, Munoz applied for asylum. The INS found him ineligible and ordered him to appear for a removal hearing.

At the hearing, at which he was represented by counsel, Munoz withdrew his asylum request but asked for a hardship waiver that would allow him to remain in the country.

The immigration judge ruled that because the INS proceedings were filed after April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA, Munoz could only obtain a waiver if he met the requirements of that statute.

To obtain a hardship waiver under IIRIRA, the applicant must prove that he or she has lived in this country continuously for at least 10 years, be of good moral character, and prove that removal would cause extreme hardship to a qualifying relative.

Prior law allowed the granting of a “suspension of deportation” if the alien could prove, among other things, that he or she would personally suffer extreme hardship if required to leave the country.

The IJ agreed that Munoz met the residency and moral character requirements, but held that he had no qualifying relatives who would suffer hardship. Under IIRIRA, only a parent, spouse or child who is a citizen or legal resident at the time of the hearing qualifies.

Munoz’s mother, the judge found, did not qualify because she was not a citizen or permanent resident at the time; his stepfather did not qualify because the statute treats the spouse of a biological parent as a parent of the applicant only if the parent and stepparent were married before the applicant turned 18.

The BIA found the IJ’s interpretation of the law to be correct.

The Ninth Circuit panel agreed, rejecting Munoz’s claim that his nearly lifelong residence in the United States and lack of ties to another country gave him a substantive due process right to remain here. Clifton acknowledged that Munoz presented a case of unique circumstances, but said the congressional power over aliens was paramount.

The court also rejected a claim that Munoz should be allowed to claim the benefit of the Nicaraguan Adjustment and Central American Relief Act—known as NACARA—enacted in November 1997.

Under the act, nationals of Honduras, Nicaragua, El Salvador and Guatemala are entitled to special consideration. Among other things, the law permits Guatemalans to qualify for suspension of deportation under pre-IIRIRA law, provided that the applicant requested asylum on or before April 1, 1990.

Munoz argued that his asylum request, although not made until 1997, should be considered timely under NACARA because he was a minor at the time of the cutoff. Under the doctrine of equitable tolling, his counsel argued, the cutoff date for an applicant who was a minor living in the United States on April 1, 1990 should be the applicant’s 19th birthday.

But Clifton said the NACARA deadline is like a statute of repose, rather than a statute of limitations, and is thus absolute and not subject to equitable tolling. Nor do various treaties with regard to protection of children’s rights require that the cutoff date be extended, the judge said.

It was ironic, Clifton acknowledged, that an innocent alien who tried to resolve his situation through proper procedures must leave the country, while his mother—who smuggled him in as a baby—remains here legally. But the judge pointed out in a footnote that the INS has various procedures—such as the granting of an “administrative stay of removal”—by which an otherwise ineligible alien may be allowed to remain in the country.

The case is Munoz v. Ashcroft, 01-71146.


Copyright 2003, Metropolitan News Company